FIRST-PARTY PROPERTY APPELLATE TEAM
Kimberly J. Fernandes Partner
Tallahassee | Atlanta
T: (850) 577-1301
kfernandes@kklaw.com
Daniel Montgomery Partner
Jacksonville
T: (904) 549-7700
dmontgomery@kklaw.com
ADMISSIONS
For any questions, please contact:
Jeffrey M. Wank
Chair, First-Party Property and Insurance Coverage Division
Fort Lauderdale
T: (954) 370-9970
jwank@kklaw.com
Florida • Georgia • United States Court of Appeal, Eleventh Circuit
SELECTED OPINIONS
w Expert Inspections, LLC d/b/a ITest d/b/a Moldexpert.com a/a/o Pat Beckford v. United Property & Casualty Insurance Company, 333 So.3d 200 (Fla. 4th DCA 2022) (holding that an insurer cannot be required to follow the terms of an AOB contract where the insurer is not a party to that contract).
w The Kidwell Group, LLC d/b/a Air Quality Assessors of Florida a/a/o Maria Amadio v. Olympus Insurance Company, Case No. 5D21-2955 (Fla. 5th DCA July 22, 2022) (interpreting section 627.7152, F.S., as applying to AOB contracts executed after the enactment of the statute, finding the policy inception date irrelevant to the analysis).
w Saunders v. Florida Peninsula Insurance Company, 314 So.3d 592 (Fla. 3d DCA 2020) (interpreting the “faulty workmanship” policy exclusion to include the workmanship process as well as the finished product in affirming the insurer’s denial of a property damage claim).
w The Kidwell Group, LLC d/b/a Air Quality Assessors of Florida a/a/o Benjamin Kivovitz, Case No. 4D21 2843 (Fla. 4th DCA June 15, 2022) (enforcing the new section 627.7152, F.S., requirement of including a line-item estimate with an AOB contract at the time of execution)
ADMISSIONS
Florida • U.S. District Court, Northern District of Florida • U.S. District Court, Middle District of Florida
SELECTED OPINIONS
w Progressive American Insurance Company v. Glassmetics, LLC, No. 2D21-488, 2022 WL 1592154 (Fla. 2d DCA 2022) (“we reverse the trial court’s order and its conclusions (1) that the appraisal provision was against the public policy underlying section 627.428; (2) that the appraisal provision failed to provide sufficient procedures and methodologies; (3) that Progressive waived its appraisal right; (4) that the appraisal provision was unenforceable because Progressive failed to prove that the insured knowingly, voluntarily, and intelligently waived his rights of access to courts, to a jury trial, and to due process; and (5) that the appraisal provision contains an ambiguity.”).
w All Auto Glass v. Progressive American Ins. Co., Case No. 2018-SC-3126, 2019-33-AP (Fla. Seminole Cnty. Appellate Division.) (“reversing trial court, holding ruling of district court of appeal in jurisdiction other than where trial court is located is binding upon trial court absent conflict with another district court of appeal. )
w Progressive Am. Ins. Co. v Broward Ins. Recovery Ctr., LLC, 322 So. 3d 103 (Fla. 4th DCA 2021) (“reversing trial court, holding prohibitive cost doctrine inapplicable to appraisal”).
Declaratory Relief – Mootness
and Confession of Judgment Doctrines
PROGRESSIVE SELECT INS CO V TYLER HILCHEY, 2D2022-3466 (AUG 21, 2024)
KK TAKEAWAY:
The action is not moot if the responding party consents to the petition. Rather, the trial court must determine whether there is subject matter jurisdiction specific to the element of a bona fide dispute.
KK TAKEAWAY:
If a bona fide dispute existed at commencement, the trial court should consider the confession of judgment doctrine.
BACKGROUND:
During the claim investigation, Progressive requested the Insured’s examination under oath (“EUO”). The Insured retained counsel
and agreed to an EUO with the condition that it be conducted virtually due to COVID-19 concerns. Progressive advised it would comply with current CDC requirements and would advise. Ultimately, Progressive served a notice of EUO for a remote appearance. Insured filed a declaratory action seeking relief only to appear remotely. Progressive responded with a single affirmative defense of mootness. Progressive asserted it was no longer seeking an EUO; thus, the matter was moot. Insured acquired summary judgment, finding Progressive confessed judgment, and was entitled to fees.
The Second District Court of Appeals overturned the summary judgment. The Second District clarified that concession to the relief sought does not necessarily render the matter moot. Rather, it requires the trial court to determine whether a bona fide dispute remains or whether there was a bona fide dispute at commencement. If a bona fide dispute existed, a trial court should evaluate whether a confession of judgment occurred. Under this case, the Second District held it did not because the Insured was never required to file the petition given the remote EUO notice. However, the Second District clarified that in circumstances where an Insured had a bona fide dispute, an agreement to the relief sought could trigger the confession of judgment doctrine.
Claims Administration Waiver – Not Applicable to Policy Defenses
ELIZABETH FOJON V ASCENDANT COMMERCIAL INS
CO , 3D23-1400 (AUGUST 28, 2024)
KK TAKEAWAY:
The Commercial Auto For-Hire liability policy only covers individuals and vehicles listed on the coverage schedule.
KK TAKEAWAY:
Florida’s claims administration statute, section 627.426, Florida Statute waiver provision only applies to coverage defenses, not policy defenses.
BACKGROUND:
Ascendant issued a commercial Automobile For-Hire liability policy to USA Taxi and Taxi Runner, Inc., requiring all drivers and vehicles to be listed on the policy schedule. In March
2018, Kelbert Ferdinand was involved in an accident with Elizabeth Fojon. At the time of the accident, Ferdinand operated his vehicle as a taxi for hire for USA Taxi and Taxi Runner, Inc. However, neither he nor the vehicle involved was listed on the schedule. Ferdinand entered a Coblentz agreement assigning his rights to recovery against Ascendant. Fojon filed a declaratory action seeking a declaration that Ascedants failed to advise Ferdinand of a coverage defense pursuant to section 627.426, Florida Statutes.
The trial court granted summary judgment in favor of Ascendant, finding no duty to defend or indemnify. The Third District upheld the judgment, finding as an initial matter that there was no coverage for a driver and vehicle not listed on the schedule.
As to the claims administration statute, the Third District clarified that the statute only limits the application of the claims administration defense waiver to coverage defenses, not policy defenses. Coverage defenses trigger coverage, but an insured fails to comply with a condition or duty, triggering a forfeiture. Policy defenses are where the insuring agreement is not triggered, such as an exclusion, loss outside the policy period, or non-covered insured. The claims administration statute is wholly inapplicable to a defense of no coverage.
Insurable Interest
UNIVERSAL PROP & CAS INS CO V KIMBERLY AND CARLOS CORTEZ, 4D2023-0676 (AUGUST 21, 2024)
KK TAKEAWAY:
Foreclosure extinguishes all debt and removes the Insured’s insurable interest.
KK TAKEAWAY:
Deed in lieu of foreclosure that extinguishes all debt removes insurable interest even when the agreement to transfer the right to insurance proceeds exists.
KK TAKEAWAY:
Preferred contractor endorsements are not unconscionable where insureds receive a premium reduction, and the endorsement is unambiguous. Knowledge of secondary agreement between vendor and carrier is immaterial.
BACKGROUND:
One year after filing a vandalism claim, the Insureds executed a warranty deed in lieu of foreclosure. In exchange for the deed, the mortgagee released the promissory note. The same day the Insureds executed the warranty deed, they executed an agreement that the mortgagee keep any hazard claim proceeds or interest accrued. The Fourth District Court of Appeals held the deed in lieu discharged the debt; thus, the Insureds had no insurable interest on the property.
Appraisal –Ripeness of Dispute
7635 MANDARIN DRIVE, GENE LAWSON AND NITA LAWSON V CERTAIN UNDERWRITERS AT LLOYD’S, LONDON, 4D2023-2474 (AUGUST 21, 2024)
KK TAKEAWAY:
A demand for an actual cash value estimate in place of a submitted replacement cost estimate does not render appraisal premature, whereas the policy sets appraisal for disputes regarding the amount of loss.
BACKGROUND:
Insureds brought a breach of contract action after a dispute arose on a water damage claim. PA submitted an initial replacement cost value estimate of $231,304.72. Llyod’s issued an actual cash value payment of $51,422.70 based on a replacement cost value estimate of $57,005.92. In response, the public adjuster requested appraisal pursuant to the policy. Llyod’s contested a dispute existed because the insureds never submitted an actual cash value estimate.
The Insureds filed a complaint, which the trial court dismissed as it only sought replacement cost value. However, the Insureds amended the complaint to seek enforcement of the appraisal provision. Llyod’s argued the Insureds never submitted an actual cash
value estimate nor proof of incurred costs; thus, the matter was not ripe for appraisal. The trial court compelled appraisal, finding the Insureds were not required to submit an actual cash value estimate to trigger appraisal because sufficient information had been exchanged to establish a dispute regarding the amount of loss. After the payment of the appraisal award, the trial court denied Insureds’ motion for fee entitlement. The trial court expressly found no breakdown in claims communication because the insured did not provide the information needed to move the claim forward.
The Fourth District Court of Appeals reversed and remanded the order holding fee entitlement. The Fourth District expressly held that the Insureds were not required to produce an actual cash value estimate pursuant to the policy to trigger the appraisal provision. Rather, the Insureds were required to comply with post-loss conditions and conduct a meaningful exchange of information. An inspection was conducted by Llyod’s, and the parties’ estimates, albeit replacement cost value, had a $150,000 difference.
Trial – Closing Arguments –Failure to Call Witnesses
GLENN BROSNAN V STATE FARM INS CO , 5D2022-3062 (AUG 20, 2024)
KK TAKEAWAY:
If a special relationship exists with a party (e.g., parent, spouse, child), then the failure of such party to call the witness triggers the presumption that testimony is unfavorable.
KK TAKEAWAY:
The Fourth District maintains that carriers must establish prejudice when policy language contains “if prejudicial to us.”
BACKGROUND:
Insureds submitted a claim for water damage resulting from a toilet overflow. State Farm issued a partial denial related to damage to a prior 2016 claim that was withdrawn. The Insureds admitted the 2016 claim was in the same area and same issue. During depositions, the Insured testified that he recalled receiving a call from his visiting sister while he was at work and returned home to find the damage. The Insured’s sister testified during deposition that she recalled the incident as she put down paper towels to soak up the water. During
her deposition testimony, she referenced November 22, 2018, as the date of loss. During the trial, it was discovered that Insured could not have been at work because the date of loss was Thanksgiving, and Insured had the day off. Insured testified that it could not have been the date of loss.
State Farm introduced the deposition testimony to challenge the credibility of the Insured’s testimony, given the date of loss was inaccurate. Neither party called Insured’s sister. Before closing, Insured’s counsel sought limine to preclude State Farm from referencing an adverse inference due to Insured’s failure to call his sister to testify. The trial court limited State Farm to reference other people who were at the property and were not called to testify.
The jury returned a verdict for State Farm finding the Insured failed to prove a date of loss during the policy period. Insureds claiming that State Farm had equal opportunity to call the sister as a witness, thus were not entitled to presumption or inference. The Fifth District Court of Appeals affirmed the trial court’s finding that the Insured’s sister was a special relationship, which precluded mutual availability. Further, State Farm’s primary argument was the Insured claimed other people were present, but did not call them. Even concerning the sister alone, it was specific to the Insured’s burden of proof and was a special relationship for the exception to the missing witness rule.
ACCOLADES AWARDS AND FIRM AWARDS
Kelley Kronenberg has been the recipient of numerous awards and honors both firm-wide and for a number of our practices, including individual accolades. Below is a select list of recognition and awards:
MEET THE
CONTRIBUTORS
Jeffrey M Wank Chair, First-Party Property and Insurance Coverage Division
Email Jeffrey M. Wank
Jeffrey Wank is Chair of First-Party Property and Insurance Coverage focusing his practice on first-party property insurance Defense, including coverage and bad faith litigation. Jeffrey also handles the defense of a wide array of third-party insurance defense claims.
Jeffrey assists insurers in all aspects of coverage disputes, including responses to civil remedy notices of insurer violations, pre-suit investigations and coverage evaluations, declaratory judgment and bad faith litigation. He defends property insurers throughout Florida in first-party coverage matters, where many of the claims involve sinkhole, windstorm, fire, mold, theft and water losses.
In addition, Jeffrey serves as coverage and bad faith counsel in third-party actions, including monitoring the defense of litigation. As part of this role, he is often asked to draft detailed coverage opinions, reservation of rights letters, declinations, and prosecute declaratory relief actions.
Jeffrey also has experience in handling complex civil and commercial matters, including the defense of personal injury, premises liability, employment discrimination, medical malpractice, nursing home liability, homeowner and condominium association claims, and construction defect cases.
Jeffrey has been named a Florida Super Lawyer Rising Star since 2014. In 2011, he was elected to the Broward Bar Association Young Lawyers Section Board of Directors, where he served as Secretary on the organization’s Executive Board and moved up to President in June 2015. Jeffrey was also named the Chair on the Board of Directors of Legal Aid Service of Broward County & Coast to Coast Legal Aid of South Florida for the 2019 term and previously served as the Vice Chair for the 2018 term.
Jeffrey earned his Bachelor of Science in Political Science from Florida State University and went on to earn his Juris Doctor degree from Nova Southeastern University Shepard Broad Law Center.
Daniel Montgomery Partner
Email Daniel Montgomery
Daniel Montgomery is a Partner at Kelley Kronenberg where he assists in handling matters related to first-party property insurance defense. Daniel handles all aspects of first-party property defense, including coverage disputes, pre-suit investigations, fraud investigations, and CRN responses. Additionally, our clients frequently engage Daniel to assist with the development of claims processes and procedures. Daniel’s practice is also focused on the highly-specialized areas of first-party property appeals and auto glass defense.
Prior to joining Kelley Kronenberg, Daniel worked as an Associate Attorney with an Am Law 200 firm, focusing his practice on first-party auto coverage and litigation, general liability litigation, and appellate law. Daniel also practiced as an Assistant State Attorney for Florida’s Fourth Judicial Circuit, in Jacksonville, where he litigated a variety of criminal proceedings through trial and served as a liaison for UVISA Certifications.
Daniel received his Bachelor of Science degree in Criminal Justice, summa cum laude, with a Certificate of Crime Scene Investigation, from Colorado Technical University. He then went on to earn his Juris Doctor degree from Florida Coastal School of Law, graduating cum laude.
Since Law School, Daniel continued his education by obtaining a Master of Science, summa cum laude, from Florida State University, with a Certificate in U.S. Intelligence. Daniel acquired an additional LL.M. in Executive Litigation Management from Baylor Law School.
During Daniel’s career he has served on several committees and groups continually working to develop awareness, knowledge, and best practices in a variety of areas including mental health, utilizing technology to drive efficiencies, special investigations, and litigation management best practices.
more than with over the convenience of
510
220
Employees Attorneys Locations
Founded in 1980, Kelley Kronenberg is an award winning, multi-practice national law firm with 510 employees, 230 attorneys, and 17 locations throughout Florida and the United States.
We are privileged to represent large public and private companies, small businesses, and individuals nationwide. With more than 40 practice areas, and growth on the horizon, we offer a comprehensive catalog of legal services to protect your legal interests in business and at home. Our firm is progressive and technologically advanced, while remaining true to our customer service heritage: integrity, ingenuity, and sincerity. Ever mindful of our history, but intensely committed to our future, we offer our clients a small firm feel with large firm resources.
LOCATIONS
FORT LAUDERDALE
10360 W. State Road 84
Fort Lauderdale, FL 33324
Phone: (954) 370-9970
ORLANDO
20 North Orange Avenue, Suite 704
Orlando, FL 32801
Phone: (407) 648-9450
TAMPA
1511 North Westshore Blvd., Suite 400
Tampa, FL 33607
Phone: (813) 223-1697
DAYTONA
128 Orange Avenue, Unit 306 Daytona Beach, FL 32114
Phone: (754) 888-5437
NEW YORK CITY
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New York, NY 10177
Phone: (845) 306-7867
CHICAGO
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Chicago, IL 60602
Phone: (312) 216-8828
JACKSONVILLE
10245 Centurion Parkway N, Suite 100 Jacksonville, FL 32256
Phone: (904) 549-7700
MERRILLVILLE
233 E. 84th Drive, Suite 200 Merrillville, IN 46410
Phone: (317) 731-6243
BY APPOINTMENT ONLY
SHORT HILLS
51 John F. Kennedy Parkway
First Floor West
Short Hills, NJ 07078
Phone: (908) 403-8174
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Atlanta, GA 30309
Phone: (404) 990-4972
MIAMI
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Coral Gables, FL 33134
Phone: (305) 503-0850
NEW ORLEANS
400 Poydras Street, Suite 2400
New Orleans, Louisiana 70130
Phone: (504) 208-9055
TALLAHASSEE
6267 Old Water Oak Road, Suite 250
Tallahassee, FL 32312
Phone: (850) 577-1301
DALLAS
5956 Sherry Lane, 20th Floor Dallas, TX 75225
Phone: (983) 999-4640
WEST PALM BEACH
1475 Centrepark Blvd., Suite 275
West Palm Beach, FL 33401
Phone: (561) 684-5956
INDIANAPOLIS
10475 Crosspoint Blvd., Suite 218 Indianapolis, IN 46256
Phone: (317) 731-6243
NAPLES
1570 Shadowlawn Drive
Naples, FL 34104
Phone: (239) 990-6490
